UNION OF INDIA (UOI) Vs. HIREN MAITY

JUDGEMENT

(1.) In this appeal, the Respondents, who are 77 in number, joined the services under the South Eastern Railway, as casual labourers (gangmen) and they have put in 6 to 12 years of continuous services in the said Railway under the Permanent Way-Inspector, Santragachi (East), in the district of Howrah. In view of Clause (b) of para 2501 of chap. XXV of the Railway Establishment Manual, the Respondents having worked for more than six months without a break have acquired the status of casual labour to be treated as temporary. There was a general strike in all the Railways which commenced in West Bengal from May 8, 1974 and continued till May 27, 1974, when it was called off. It is the case of the Respondents that they could not attend their duties for reasons beyond their control. After the withdrawal of the general strike they reported for duties on May 28, 1974, but they were not given any work by the authorities concerned without assigning any reason. Subsequently, they received cyclostyled notices dated May 21, 1974, whereby their services were terminated under Rule 149(1) of the Railway Establishment Code, vol. I. It was directed in the notices that they would be paid the sum equivalent to the amount of pay and allowances for one month in lieu of the period of notices. They challenged the legality of the notices terminating, their services by a writ petition under Article 226 of the Constitution and obtained a Rule being C.R. No. 4798 (W) of 1974. The said Rule along; with two other Rule were heard together by A.K. Mukherji J. and his lordship by his judgment dated October 7, 1974, made the said Rules absolute on the ground that as payment of one month's salary in lieu of notice had not been made simultaneously with the issuance of the notices under Rule 149, the impugned orders of termination were illegal and must be set aside. Thereafter, fresh notices under Rule 149(1) were issued by the Railway on June 23,1975, terminating the services of the Respondents with effect from July 1, 1975. It was, further, directed that the sum equivalent to the amount of pay and allowances for the notice period of one month had been kept ready for payment. The Respondents again challenged the termination of their services by fresh notices, all dated June 24, 1975 and issued under Rule 149(1) and obtained a Rule nisi put of which this appeal arises.

(2.) The principal contentions of the Respondents in the Rule were that they were workmen within the meaning of the Industrial Disputes Act, 1947, that the termination of their services amounted to retrenchment as defined in Section 2(oo) of the said Act and that the Appellant, the South Eastern Railway, not having paid them compensation as required to be paid under Section 25F, the orders of termination were illegal and inoperative. T.K. Basu J., who heard the Rule, accepted the contentions of the Respondents, set aside the orders of, termination and made the Rule absolute. Hence, this appeal.

(3.) It is not disputed before us that the Respondents are workmen within the meaning of the Industrial Disputes Act. Rule 149 consists of six clauses. The first part of Clause (1) of Rule 149, inter alia, provides that a Railway servant will not be entitled to any notice of termination if his service is terminated on certain grounds as mentioned therein. These grounds do not apply to the Respondents. The latter part of Clause (1) provides that if the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice and to a notice of fourteen days if he was not engaged on a contract. Clauses (2) and (3) provide for the termination of service of apprentices and certain other Railway servants. Clause (4) lays down that in lieu of the notice prescribed in Rule 149, it shall be permissible on the part of the Railway Administration to terminate the service of a Railway servant by paying him the pay for the period of notice. Under Clause (5), the notice of termination of service should be given by an authority not lower than the appointing authority. Clause (6) provides that notwithstanding anything contained in Clauses (1), (2) and (4), if the Railway servant or apprentice is one to whom the provisions of the Industrial Disputes Act, 1947, apply, he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act.